If you make your living in the tax world, you know David Kirk, even if you don’t think you know David Kirk.

If you’ve ever applied for a late S corporation election, you know David Kirk. If you’ve ever computed a client’s liability for the net investment income tax, you know David Kirk. And if you’ve ever been wowed by the acting chops on the guy who played Captain Kirk in that Star Trek-themed training video the IRS put out, well then, you know David Kirk.

OK, I made that last one up. But David Kirk is still one impressive dude.

After earning his undergraduate degree at Syracuse, Kirk added a law degree (University of Pittsburgh) and LLM (Georgetown) to his resume before joining the IRS as an attorney with the Office of the Chief Counsel. Within Chief Counsel, Kirk landed with the Passthroughs and Special Industries division, where he specialized in the treatment of partnerships, S corporations, estates and trusts.

While with the IRS, Kirk worked tirelessly to make our lives easier. He authored Revenue Procedure 2013-30 – which offers late relief from a missed S corporation, QSub, or entity classification election — sparing advisors from many a rough conversation with clients.

If you tuned in to the President’s State of the Union address last week, you surely noticed that the recently enacted Tax Cuts and Jobs Act has been earmarked as the elixir for all that ails America. Soon enough, assembly line workers and supermarket cashiers will be lighting cigars with $100 bills — all because $1.5 trillion in corporate and individual tax cuts have been placed on the ol’ national credit card.

And while that may come to pass, it is important to remember that in any tax bill, while the good news gets the headlines, there is always more to the story.

For example: there are over $4 trillion in tax cuts contained within the Act. But remember: because Republicans chose to use the streamlined budget reconciliation process to pass the bill without a single vote from a Democrat, their hands were tied from a fiscal perspective: the net tax cuts could not exceed $1.5 trillion over the next ten years.

So how did Republicans get $4 trillion in tax cuts to fit within a $1.5 trillion-sized box? By offsetting some of the cuts with tax increases.

Think about the business side of the Act: The corporate rate was reduced from 35% to 21%, a move that ALONE would amount to a $1.3 trillion tax cut over the next decade. That’s right: the tax break resulting from the corporate rate reduction, in isolation, nearly matched the total cuts permitted by the budget reconciliation process.

At first blush, you might think I’m a little late to the game with my annual “New Year’s Resolution” post. But my delay was actually a stroke of strategic genius. By waiting a few days to publish, I was allowing ample time for all of your original goals for 2018 to fail miserably. And look at you now: It’s only January 5th, and you’re already back on gluten. You’ve giving Jim a second chance. And you told the guy at the gym that you needed a full refund because you tore a muscle that, according to the latest medical research, does not actually exist.

But you can still salvage 2018. You can still leave the year a better person than the one who entered. Now, I can’t whip you into shape, or get you to put down the pizza, or convince you that Jim is the worst (and he is), but I can make you a better tax professional. All you need to do are these five things:

Embrace the Moment

No, no…I’m not suggesting that we put down our phone and spend more time with our kids. That never works, and for good reason. After all, the stuff on Twitter is far more interesting than anything Junior has to say.

What I am suggesting, however, is that as tax professionals, we look at the recent overhaul of the tax law not as a burden, but as an opportunity. Allow me to explain what I mean with a little story:

A few months ago, my 8 year old boy was invited to a birthday party at the local bowling alley. It wasn’t one of those “drop off and bail” parties, so I had to stick around for the duration. I didn’t know any of the other parents, so the prospect of killing two hours with 10 total strangers quickly grew uncomfortable, made only more so by the fact that like any tried-and-true tax guy, I’m inherently anti-social to being with.

Eventually, the conversation among the adults turned where it always does when no one knows what else to say: discussing what we do for a living. When it was my turn, I fessed up: I was a CPA who made my living in the tax law.

Two short weeks ago, we dissected perhaps the most widely-anticipated but least-understood aspect of the Tax Cuts and Jobs Act: the new deduction available to business owners. As a reminder, under the new law, after January 1, 2018, the owner of a:

sole proprietorship reported directly on Schedule C

rental activity reported directly on Schedule E

S corporation, or

partnership…

…is entitled to take a deduction equal to 20% of the “qualified business income” earned from the business.

Qualified business income is best thought of as the ordinary, non-investment income of the business. Stated in another way, this is the revenue the business was designed to generate, less the applicable expenses. So we ignore things like interest or dividend income or capital gains from the sale of property.

The deduction, however, is limited to the LESSER OF:

20% of qualified business income, or

50% of the total W-2 wages paid by the business.

There is also an alternative limitation based on the owner’s allocable share of 2.5% of the unadjusted basis of certain business assets, but let’s cast that aside for today.

When you arose from your Titos-induced slumber on the morning of January 1st, it was more than just your pants and dignity that had gone missing. While you were ringing in the New Year, the Internal Revenue Code you’d come to know and love had disappeared, replaced by the Tax Cuts and Jobs Act, the most comprehensive overhaul of the tax law in 31 years.

Fortunately for you, with enough money, both trousers and self-respect are easily recouped. An understanding of the tax law, however? That can’t be bought. As a result, you’ve got to start over, diving into the wholesale changes that took effect on New Year’s Day in hopes of regaining the same level of comfort you enjoyed with the previous version. And that’s not going to be a quick process, because as we’re quickly learning, for every straightforward tweak to the law– the doubling of the standard deduction, the elimination of personal exemptions — there is a corresponding influx of complexity that requires you to pop on the ol’ thinking cap.

In last week’s Tax Geek Tuesday, we took on perhaps the most intimidating and impactful provision of the new law: the “20% of qualified business income” deduction available to sole proprietors and owners of pass-through entities. It was a productive endeavor, but our work is far from over.

Today, we’ll move on to the next big challenge posed by the new law: understanding the changes that have been made to the way we depreciate assets purchased for use in a business.

If you make your living in the tax world, you know David Kirk, even if you don’t think you know David Kirk.

If you’ve ever applied for a late S corporation election, you know David Kirk. If you’ve ever computed a client’s liability for the net investment income tax, you know David Kirk. And if you’ve ever been wowed by the acting chops on the guy who played Captain Kirk in that Star Trek-themed training video the IRS put out, well then, you know David Kirk.

OK, I made that last one up. But David Kirk is still one impressive dude.

After earning his undergraduate degree at Syracuse, Kirk added a law degree (University of Pittsburgh) and LLM (Georgetown) to his resume before joining the IRS as an attorney with the Office of the Chief Counsel. Within Chief Counsel, Kirk landed with the Passthroughs and Special Industries division, where he specialized in the treatment of partnerships, S corporations, estates and trusts.

While with the IRS, Kirk worked tirelessly to make our lives easier. He authored Revenue Procedure 2013-30 – which offers late relief from a missed S corporation, QSub, or entity classification election — sparing advisors from many a rough conversation with clients.

Kirk’s magnum opus, however, was his work as the primary author of the regulations under Section 1411, the provision of the Affordable Care Act that imposes a 3.8% surtax on net investment income. At a time when practitioners were struggling to keep up with an abundance of new law – the repair regulations, the individual mandate, and the expiration of the Bush tax cuts, to name a few – Kirk’s proposed and final regulations under Section 1411 provided much needed guidance in a way advisors could understand and implement.

On December 22nd, President Trump signed into law the Tax Cuts and Jobs Act, finalizing a once-in-a-generation overhaul of the existing Code and leaving the once-burdensome tax law so simple, we’ll all be preparing our returns on postcards come the spring of 2019.

Simple. That’s rich. I’ll make a deal with you: how about we spend some time diving into just one aspect of the bill — the new deduction bestowed upon owners of sole proprietorships, S corporations, and partnerships — and then you decide for yourself just how simple this all will be?

For those of you who are familiar with the format of a “Tax Geek Tuesday,” you know what to expect. For those of you who are new to this space, what we do here is beat the heck out of a narrow area of the tax law. In great, painstaking, long-form level of detail. The hope, of course, is that we can accomplish what Congress can’t: making the law more manageable for those who need to apply it. Let’s get to it.

Entity Choice Under Current Law

If you want to operate a business, there are four main choices for doing so:

C corporation

Sole proprietorship

S corporation partnership

Owners of a “C corporation” are subject to double taxation. When income is earned by the corporation, it is first taxed at the business level, at a top tax rate of 35% under current law. Then, when the corporation distributes the income to the shareholder, the shareholder pays tax on the dividend, at a top rate of 23.8%. Thus, from a federal tax perspective, owners of a C corporation pay a combined total rate on the income earned by the business of 50.47% (35% + (65% * 23.8%)).

Of course, you don’t have to operate as a C corporation. Instead, you can operate a business as a sole proprietorship. Or as an S corporation. Or as a partnership. And what do these three business types have in common? They all offer a single level of taxation: when income is earned at the business level, it is generally not taxed at that level; rather, the income of the business is ultimately taxed only once, at the individual level.

The items in this blog are informational only and are not meant as tax advice. Consult with your tax advisor to determine how any item applies to your situation. A select group of Tax Professionals of WithumSmith+Brown write Double Taxation, and any opinions expressed or implied are not necessarily shared by anyone else at WithumSmith+Brown.

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Our tax specialists have a comprehensive understanding of international, federal, state and local tax regulations. We work with you to ensure tax reporting obligations are met in an accurate and timely manner, and to minimize or defer the payment of taxes, thereby adding value to your company. Through the use of technology, we stay up-to-the-minute on tax law changes, and know how they affect your business. Through our affiliation with HLB International, we can also assist you in developing cost-effective tax strategies anywhere in the world.